Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MURALI PURUSHOTHAMAN, J.
Elizabeth Thomas @ Laila Thomas, W/o. Mathai Thomas and Anr. – Petitioners
Versus
Thiruvalla Municipality, Represented By Its Secretary and Ors. – Respondents
WP(C) No. 21312 Of 2021, WP(C) No. 24665 Of 2017
Decided On : 06-11-2023
Fact of the Case:
The petitioners alleged that they had reconstructed a building in accordance with a building permit but faced challenges from neighbors and municipal authorities. The Tribunal set aside an order for demolition issued by the Secretary of the Municipality, leading to subsequent actions by the government based on a report from the Chief Town Planner.Finding of the Court:
The court found that certain actions taken by the government were without jurisdiction and violated procedural requirements. It declared that reports submitted behind petitioners' backs should not be relied upon and set aside notices issued based on such reports. It directed further proceedings to be conducted within three months following specific procedures outlined in Section 406 of the Act and Rule 18 of the Building Rules.Issues:
Legality of constructions, jurisdictional authority to issue orders, procedural compliance with rules and regulations.Ratio Decidendi:
The court emphasized that powers conferred on different authorities must be exercised within prescribed procedures, ensuring natural justice is upheld. It clarified that actions against unlawful construction should follow due process as per statutory provisions.Final Decision:
The writ petitions were disposed of with directions for further proceedings to be conducted in adherence to statutory procedures within a specified timeframe.JUDGMENT :
Since common issues arise for consideration in these writ petitions, they are disposed of by this common judgment. Unless otherwise expressly indicated, the status of the parties and the exhibits referred to herein below shall be as obtaining in W.P.(C) No.21312 of 2021.
2. The petitioners in both the writ petitions are neighbours. Each alleges that the other had made constructions in breach of permit and licensing provisions.
3. The petitioners in W.P.(C) No.21312 of 2021 are owners of 1.7 ares of land comprised in Survey. No.190/35 of Thiruvalla Village and a commercial building thereon. According to them, they have reconstructed the building in accordance with the building permit and approved plan issued by the 1st respondent Municipality. The ground floor of the building has been numbered and the same has been occupied. The petitioners started construction of the first floor of the said building after obtaining Ext.P1 building permit, and while the construction was about to complete, the 5th respondent made a complaint before the Municipality alleging that the petitioners have encroached into his property and the construction is made in violation of the provisions of the Kerala Municipality Act, 1994 (hereinafter referred to as the 'Act' for short) and the Kerala Municipality Building Rules,1999 ('Building Rules' for short). The 4th respondent, the Secretary of the Municipality issued Ext.P4 order in exercise of his powers under Section 406(3) of the Act to demolish the illegal structures carried out by the petitioners in the first floor.
4. The petitioners challenged Ext.P4 order before the Tribunal for Local Self Government Institutions (Tribunal) and the Tribunal, by Ext.P6 order set aside Ext.P4 order finding that the same was issued without following the procedure contemplated under the Act. The Tribunal directed the 4th respondent to issue fresh notice under Section 406(1) of the Act and to hear the petitioners and the 5th respondent, who had got himself impleaded in the appeal, and to take a decision. The Tribunal also clarified that the Secretary is at liberty to seek the assistance of revenue officials to find out the exact boundary of the properties owned by the petitioners and the 5th respondent.
5. Pursuant to Ext.P6 order of the Tribunal, the 4th respondent passed Ext. P12 order under Section 406(3) of the Act, directing the petitioners to remove certain structures, which were found to be carried out in violation of the Building Rules and the permit.
6. The petitioners state that, they have removed the unauthorised portions directed to be removed in Ext.P12 and also cured the defects pointed out therein. The petitioners thereafter submitted an application for numbering the building and for occupancy certificate. They also made an application for regularisation of the constructions carried out by them which was forwarded by the 4th respondent to the Town Planner by letter dated 13.11.2018. The application for regularisation was returned by the Town Planner, Pathanamthitta by Exts. P16 and P17 communications pointing out that the application is not in terms of Kerala Municipality Building (Regularisation of Unauthorised Construction) Rules, 2018, and for non compliance with the provisions of the Act and Building Rules, including insufficient set back.
7. In the meantime, the 5th respondent had approached the Government with a representation dated 03.08.2018, requesting not to regularise the constructions carried out by the petitioners. The 2nd respondent, the Secretary to Government, Local Self Government Department (LSGD), acted upon the representation of the 5th respondent and called for a report from the Chief Town Planner (Vigilance), LSGD, the 3rd respondent. The Chief Town Planner submitted Ext. P18 report to the Government stating that the building violates Section 383 A of the Act and Rules 24(3) & (5), 26 and 34(2) of the Building Rules and recommending the Secretary of the Municipality to take act
Statutory provisions governing unauthorized constructions must be adhered to by municipal authorities when issuing orders or taking action against such constructions.
when two fact finding bodies have rendered their decisions taking into account the constructions carried out and the nature of violations, under normal and ordinary circumstances, the writ court woul....
Section 406 of Kerala Municipality Act reads as Demolition or alteration of building work unlawfully commenced, carried on or completed.
Cancelled permition for construction - Quashment of - As per Rule 56(2) rear open space in back should be 1.5m for building up to 10m height and there shall be an increase of rear open space at the r....
Point of Law : Prevalent situation either in the limits of the Corporation, Municipality or the Panchayat if noticed, it would demonstrate clear apathy on the part of the Authorities towards the citi....
The second proviso to Rule 3(1)(d) of the Kerala Panchayat Building Rules, 2019 mandates regularizing unauthorized constructions before considering new building permits.
An unauthorized construction is liable to be demolished, and the municipal authorities are not bound to regularize the same.
The main legal point established in the judgment is that unauthorized construction exceeding the permissible limit cannot be regularized under the Act of 2016.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
